Thursday, August 30, 2012

Today Magistrate Judge Richard L. Puglisi heard a motion for an order to show cause why the Hawaii Department of Education should not be held in contempt for not paying a special needs student’s tuition at a private school as ordered by Judge Alan C. Kay. He did not find the DOE to be in contempt, but he did order them to pay the ongoing tuition.

But that’s a simplification of the dialogue that took place in the courtroom this morning.

For background, it’s necessary to understand that the tension in this case is between a federal law that requires school districts to keep a student in the current placement while a legal dispute is in a hearing or in court and a recent state law that requires detailed billing for special ed programs provided in a private (or public) setting.

IDEA 2004 maintains the “stay put” provisions of IDEA 1997. (Section 1415(j)) Under the “stay put” provision, the child can remain in the then-current educational placement and continue to receive the same services during proceedings to challenge the IEP, unless the parents and school agree otherwise. (snipped from wrightslaw.com, an invaluable resource for understanding the Individuals with Disabilities Education Act).

Note that “stay put” is inclusive of services that the student is receiving. This is to protect the student from being kicked out of a program just because the school wants something different, perhaps something that costs less. Decisions on a student’s program are not made unilaterally but by a team that includes the parents. A hearing officer or judge may also order a particular placement. Even if DOE disagrees, it must maintain the current placement while the dispute plays out.

Today’s case was argued by attorney Matt Bassett of the Hawaii Disability Rights Center on behalf of student F.K. On the other side was deputy AG Michelle Puu for the DOE.

It seems that the DOE has paid only a token amount, and so Bassett argued for contempt. The judge kept hounding him for detailed billing. The order before the judge stated that the DOE will pay the tuition. Remember, now, attorney Bassett represents the student, not the school. Yet the judge kept pounding him on the adequacy of the bills, which would have differentiated related services from the tuition—all of which are covered under the federal stay put provisions anyway.

At one point, Puu said the DOE had not received bills for the tuition and Bassett said the DOE had. The judge threw the responsibility for getting the bills to the DOE to Bassett, even though he does not represent the school (Loveland Academy). The judge said (paraphrase) that a lot of public money is involved. The federal law is not concerned with the money in stay put. In fact, the cost of the placement is not a factor if a team decides they are necessary (or if ordered by a judge or hearing officer).

At the end of the hearing, Puglisi said (paraphrase) “You people should not be having this dispute. The billing which is the subject of this order should be submitted, and it will be paid. Or we will have a real contempt hearing.”

Again, let’s put this in context. DOE is relying on a state statute—Act 129—as an excuse for not following the federal law. Judge Kay ruled Act 129 was unconstitutional and rejected the state’s request to reconsider his ruling. Now, that was not the subject of the contempt hearing today—what was before Puglisi was whether the DOE paid the tuition. They did not. The student, the student’s family, and their attorney have no responsibility under federal law to provide detailed bills to the DOE.

Ultimately, if these cases drag on, Loveland Academy will be forced to close. They already have had to shrink down and turn away students. No school can stay open if they can’t pay their expenses, which are considerable for many special needs students. In that event, students requiring similar services will be forced into Mainland placements. The DOE knows that parents would be reluctant to push for that.

Deputy AG Puu said at one point that tuition on the Mainland is cheaper. Her remark was in the context of a statement made by attorney Bassett that Mainland placement costs more. Puu should know that a Mainland placement breaks up a family and is counter to the state’s agreement in settling the long-running Felix case. She is likely incorrect anyway. At the time of the Felix case there were 141 students from Hawaii in residential treatment on the mainland. The court concluded that 140 of these students could be treated in Hawaii at lower cost.

Puu and Bassett disagreed whether the DOE had received bills for the tuition or not. Puglisi did not follow up with “show me the invoices” but instead referred at some length to how he would willingly generate itemized bills for his own clients if asked to do so when he was in law practice. That’s neither here nor there under federal law. Stay put requires that the bill be paid, for all services.

Under a 1993 Supreme Court decision, the state does have an alternative—to provide the services itself. That decision was not directly on the table this morning, but it is part of the background of this case and perhaps the majority of similar cases nationwide.

This (and similar cases now before the federal court in Hawaii) could have nationwide implications. If school districts can simply dispute a bill and not pay it, that would make a mockery of the federal stay put provision. That’s not likely to happen. It will be key, however, that if the DOE does not pay the bills presented to it, that a contempt ruling should follow.

Since Judge Kay previously ruled that the school will be paid, the ongoing legal action simply means that taxpayers will foot the bill for avoidable legal and court costs. Judge Puglisi reiterated today that the DOE will pay the bills while leaving open whether they indeed have received bills that have not been paid.

Judge Puglisi stated that he would file his order this afternoon. When it is available, I will append it to this article.

So taxpayers, get a good grip on your wallet. The DOE will be digging into your money in the hopes that it can remove alternatives now available to special needs children in Hawaii. The high cost of litigation, which is paid by taxpayers and not by the DOE itself, is avoidable if the DOE would just provide the services to each student that the law requires.

Update: Corrected the name of the deputy AG. The originally posted article had the wrong name.

Wow, Larry! You did a fantastic job of explaining this whole mess to all of us! Thank you! And yes, the DOE continues to rack up huge legal bills in defiance of what the federal law says they MUST do. This is just insanity! I don't understand why the Governor (or the Attorney General) doesn't tell the DOE to follow the law. I put the blame on BOTH the DOE AND our elected officials who allow this to continue.

Been suing the DOE for years. They are snakes. Not only do they NOT provide an appropriate educaTION,they force parents to sue, then bring witnesses in to tell the judge what a shitty parent you are. These people have no integrity.